Comments on: Strip Mining the Authors 05/2011/strip-mining-the-authors/ A Lawyer's Thoughts on Authors, Self-Publishing and Traditional Publishing Mon, 14 Jul 2014 00:26:27 +0000 hourly 1 http://wordpress.org/?v=3.9.1 By: More Bad Behaviour From Agents, Publishers & VS Naipaul | David Gaughran 05/2011/strip-mining-the-authors/#comment-3736 Sat, 04 Jun 2011 12:59:17 +0000 ?p=3666#comment-3736 [...] all the gruesome details, check out the always-excellent blog The Passive Voice (written by a trained lawyer, experienced in publishing [...]

]]> By: More Bad Behaviour From Agents, Publishers & VS Naipaul | David Gaughran 05/2011/strip-mining-the-authors/#comment-3737 Sat, 04 Jun 2011 12:59:17 +0000 ?p=3666#comment-3737 [...] all the gruesome details, check out the always-excellent blog The Passive Voice (written by a trained lawyer, experienced in publishing [...]

]]> By: Elizabeth Ann West 05/2011/strip-mining-the-authors/#comment-3683 Thu, 02 Jun 2011 20:01:09 +0000 ?p=3666#comment-3683 I was invited to be a member of the class action suit against West Telemarketing. I declined as I didn’t have accurate personal records to really contribute, and I only worked “with” them for about two months. They were dinged because they labeled us contractors as we worked from home and provided our own equipment, but we had to sign into their system at regularly scheduled hours. It was taking in-bound calls through your computer at home. I took MANY Magic Bullet orders. However, say you scheduled yourself from noon until 2 PM, yes the pay was $10 per hour, but the company was only paying the exact minutes the “contractor” was on the phone. So for two hours, you sit on the phone, can’t take any personal calls, and can’t miss a call if it comes in. And if you think well just lengthen the call, they penalized you for being over the average call length, and that could lead to termination.

This gives a list of factors for determining the employee/contractor dilemma. http://www.justice-for-ic-drivers.com/static.php?page=static080510-155737

Where I see potential issues is preventing the author from writing or self-publishing after the product has been delivered and before the book is released or for the entire life of the contract (yuck). That is controlling the means and methods of the work outside of the original scope of work, but that’s just my own common sense and from watching recent cases. #5 and #8 are the most likely problems with these types of contracts becoming the “standard.”

I don’t have a publishing contract and will not be pursuing one. But if someone has these types of clauses in their contracts, they could contact a lawyer of course, but they might also want to ask the Federal Labor Board or the IRS about it. I believe the IRS has a reporting mechanism for what to do if you think you might be an employee instead of a contractor. Not that these actions are without consequences, if you become an employee, you can be fired. But it could be a way out/ even a way to claim back pay for time worked.

I’m really surprised if no one has raised this issue yet.

]]> By: Passive Guy 05/2011/strip-mining-the-authors/#comment-3677 Thu, 02 Jun 2011 18:54:57 +0000 ?p=3666#comment-3677 Hey, Elizabeth, I like the way you think. One of the many things I’m not an expert on is tax law, but it would be very interesting to look at the contractor cases where the IRS determined they were really employees. I would thing the exclusive claim on the writer’s work would tend to point toward employment.

I’ll let any accountants or tax lawyers who wander around here chime in.

]]> By: Elizabeth Ann West 05/2011/strip-mining-the-authors/#comment-3676 Thu, 02 Jun 2011 18:48:27 +0000 ?p=3666#comment-3676 I have a newcomer’s question. Wouldn’t some of the clauses, such as not allowing the writer to write or publish anything before the book comes out, run afoul of the IRS employee guidelines? I took classes at my local Small Business Administration in tax law affecting small businesses before I started my writing business 4 year ago (they were free, and very helpful) and they harped about the differences between contractors/freelancers and employees. With the deadlines for manuscripts, and then the publisher regulating what the writer can and cannot do in the meantime, it starts to sound like the writer is an employee of the publisher. As they keep changing their contracts, they could easily find themselves in hot water for not paying Medicare taxes, minimum wage, Social Security taxes, etc. Many large companies have had the IRS knock on their doors despite having contracts that specified a person was NOT an employee of the main company. Just ask West Telemarketing, UPS, and many others.

My bet would be that the lawyers at the publishing houses aren’t even thinking about this because of the long standing traditions and precedents. However, as the contracts continue to change, and more and more restrictions are placed on the writer, I could see this becoming an issue. Especially as the IRS looks for more tax revenue streams.

If I’m being a total newbie, let me know. :) I just know while I was writing non-fiction copy I had to fire at least two different clients for wanting me to be “available” via chat during hours they weren’t paying for my writing just in case. That starts making me their employee, rather than their contractor. No bueno, in my opinion. I don’t ever want to be someone’s employee ever again. :)

]]> By: Melissa Douthit's Blog » The Ship Is Sinking 05/2011/strip-mining-the-authors/#comment-3623 Tue, 31 May 2011 07:31:50 +0000 ?p=3666#comment-3623 [...] of the best: Publishers (Surviving the Transition Part 2.) Passive Guy talks about it in his blog: Strip Mining the Authors.  In it, Kris shows the reader exact clauses that she has seen recently in contracts that are [...]

]]> By: Melissa Douthit 05/2011/strip-mining-the-authors/#comment-3617 Mon, 30 May 2011 22:06:14 +0000 ?p=3666#comment-3617 Awesome!

I’ve been wanting to write a post on Kris’s blog this week but didn’t have time. Today I think I will.

Thanks, Passive Guy! I’ll be looking for the new blog next week!

Melissa

]]> By: Passive Guy 05/2011/strip-mining-the-authors/#comment-3614 Mon, 30 May 2011 17:12:29 +0000 ?p=3666#comment-3614 Thank you, C.L.

]]> By: C.L. Phillips 05/2011/strip-mining-the-authors/#comment-3613 Mon, 30 May 2011 17:03:43 +0000 ?p=3666#comment-3613 Your blog has become my “must-read” stop, even on a holiday Monday. Keep the analysis coming. I appreciate your effort.

]]> By: Author Beware in the New Publishing World | J.A. Marlow 05/2011/strip-mining-the-authors/#comment-3598 Mon, 30 May 2011 06:13:59 +0000 ?p=3666#comment-3598 [...] Strip-Mining the Authors/ [...]

]]>